….
On February 24, 2014, A.S. [age 10] and D.P. [age 5] spent the night at Hamilton’s house. During the night, D.P. awoke to Hamilton putting his finger in her “private.” [Record citations omitted throughout.] A.S. was in the same room at the time, and Hamilton also put his finger in her “private” while D.P. watched. Hamilton had done similar things to A.S. on at least five prior occasions.
On the following morning, D.P. spontaneously told [her foster mother] Heather that [defendant] had touched her; when asked where, D.P. pointed to her vagina. Both D.P. and A.S. subsequently were interviewed by Molly Elfreich, a trained forensic interviewer, and D.P. and A.S. described the molestations to her. A medical doctor also examined D.P. and A.S., who recounted the molestations to the doctor.
After the forensic interview and medical examination, Detective Jeremy Fortune of the Posey County Sheriff’s Department interviewed Hamilton. During the interview, the following exchanged occurred:
[Fortune]: [T]his is the thing, Chuck, for a five year old to say somebody stuck their finger in my vagina is pretty powerful.
[Hamilton]: Very much so.
[Fortune]: That’s pretty powerful.
[Hamiton]: Where, where is she coming up with that?
[Fortune]: And, and to say “Pappy did it” . . .
[Hamilton]: Exactly.
[Fortune]: . . . that’s even more powerful.
[Hamilton]: I agree.
The State charged Hamilton with three counts of Class A felony child molesting and one count of Class C felony child molesting. At his jury trial, during cross-examination of D.P., counsel for Hamilton asked, “Has anyone told you what to say today?” D.P. said no one had. Similarly, counsel for Hamilton asked A.S. during cross-examination, “Has anyone told you what you should say here today?” A.S. stated only that she had been told to tell the truth.
The State also called Elfreich to testify after D.P. and A.S. testified. … [O]ver Hamilton’s objection, the State asked Elfreich whether she had observed any indicators of coaching in either child, and she testified that she had not. Also, Hamilton objected to the jury hearing Detective Fortune say during his interview of Hamilton that D.P.’s statements describing her molestation had been “powerful.” The trial court overruled this objection.
The jury found Hamilton guilty of three counts of Class A felony child molestation and not guilty of the Class C felony child molestation charge. The trial court sentenced Hamilton accordingly, and he now appeals.
….
Very recently, in Sampson v. State, No. 87S01-1410-CR-684 (July 30, 2015), our supreme court * * * held:
We conclude therefore that the subtle distinction between an expert’s testimony that a child has or has not been coached versus an expert’s testimony that the child did or did not exhibit any “signs or indicators” of coaching is insufficient to guard against the dangers that such testimony will constitute impermissible vouching as we expressed in Hoglund. Nevertheless, “once a child’s credibility is called into question proper expert testimony may be appropriate.” Steward [v. State], 652 N.E.2d [490,] 499 [(Ind. 1995)]. “[B]ehavioral characteristics of child abuse victims, even where inadmissible to prove abuse, are far less controversial when offered to rebut a claim by the defense that a child complainant’s behavior . . . is inconsistent with her claim of abuse.” Id. at 496. …
Sampson, slip op. at 9. [Footnote omitted.]
….
Here, Hamilton … did object to Elfreich being asked, “did you observe any indicators of coaching” in either D.P. or A.S., to which she responded “No, I did not.” Hamilton’s … objection to Elfreich’s ultimate opinion on coaching preserved the issue for review, unlike in Sampson. It is clear under Sampson that all of Elfreich’s testimony regarding indicators of coaching was inadmissible. …
In overruling Hamilton’s objection, the trial court ruled in part that Hamilton had “opened the door” to Elfreich’s coaching testimony because he had asked both D.P. and A.S. during cross-examination whether anyone had told them what to say in court. However, both D.P. and A.S. denied having been told what to say by anyone. … Merely asking the witnesses whether they had been told what to say is not equivalent to presenting evidence that they had been told what to say, or creating a false impression in the jury that they had been. The witnesses unequivocally answered no to the questions—there was no evidence or suggestion in any testimony that the girls had been coached. As such, Hamilton did not open the door to Elfreich’s testimony.
Unlike in Sampson, Hamilton preserved his claim of error with respect to Elfreich’s testimony, and so we review it for ordinary reversible error, not fundamental error. …
We cannot say that the erroneous admission of Elfreich’s vouching testimony was harmless. There was no corroborating evidence of Hamilton’s guilt apart from the testimony of D.P. and A.S. The only value of Elfreich’s testimony was to improperly bolster the credibility of D.P. and A.S. If there is to be a rule barring vouching testimony such as Elfreich’s, then it is extremely difficult to imagine a scenario in which such testimony, where an objection to it was raised at trial, is harmless in a case such as this where a conviction depends entirely upon assessing the credibility of the alleged victim. Otherwise there would seem to be little point in having such a rule. We conclude that the erroneous admission of Elfreich’s testimony likely had a substantial influence on the jury’s guilty verdicts. Therefore, we are compelled to reverse Hamilton’s convictions and to remand for a new trial.
For purposes of remand, we also address Hamilton’s contention that Detective Fortune improperly vouched for D.P. when, during his interview of Hamilton, he stated several times that her statements were “powerful.” … We … cannot say that these comments amounted to improper vouching in the context in which they were made. In the framework of hearsay claims, statements by an officer designed to elicit a response from the defendant, as opposed to statements of fact, generally are admissible without the necessity of an admonishment or limiting instruction. Smith v. State, 721 N.E.2d 213, 216 (Ind. 1999). Here, similarly, Detective Fortune’s saying that D.P. had made “powerful” statements were related to attempting to elicit a response from Hamilton. Hamilton did respond by agreeing that the statements were “powerful” but denied molesting D.P. or A.S. Viewing Detective Fortune’s statements from the perspective of them being part of a police interview, we do not believe they carry the same vouching force as trial testimony to that effect. Hamilton also fails to cite any authority in a similar case addressing statements similar to Detective Fortune’s. We conclude there was no error in the admission of those statements.
….
The trial court committed reversible error in admitting Elfreich’s testimony regarding whether D.P. or A.S. had been coached. However, Detective Fortune’s statements during his interview with Hamilton did not constitute improper vouching. We reverse Hamilton’s convictions and remand for retrial consistent with this opinion.
Kirsch, J., and Najam, J. concur.